When a contract transferring real property in return for maintenance and care is void

Nullity of a contract transferring real property in return for maintenance and care where the transferor is ill

Article 26(2), second sentence, of the Obligations and Contracts Act establishes a rebuttable presumption that a contract has a legal basis (causa). This presumption concerns the basis of the very contract alleged to be void for want of such a basis. In an action for a declaration that a causal contract is void on this ground, the claimants must therefore prove the absence of a legal basis. In the case of a transfer of real property in return for an undertaking to provide maintenance and care, two facts must be established on this ground: the transferor had an illness such that death was to be expected very shortly after the date of the contract, and, when the transaction was concluded, the transferee knew that death was imminent. It is for the claimant or claimants to establish both facts.

The settled case law cited here gives examples of terminal conditions: cancer, cerebrovascular disease such as stroke, cardiovascular disease such as myocardial infarction, and advanced heart or respiratory failure. It refers specifically to the terminal stage, in the days preceding death, characterised by complete physical exhaustion, inability to perform even elementary movements, frequent or persistent loss of consciousness and similar signs. The interval between the transaction and death described in these decisions is very short: days, less than a month (Supreme Court of Cassation, Judgment No. 420 of 11 January 2012 in civil case No. 99/2011, Third Civil Division, and Judgment No. 569 of 8 March 2011 in civil case No. 76/2009, Fourth Civil Division, Civil Chamber).

This article is not a legal opinion or advice about any particular person or situation, and the author does not claim to cover contracts for the transfer of real property in return for maintenance and care exhaustively. For legal assistance in a similar case, consult a lawyer practising family and succession law.